AB 748 shifts power to public

As of Monday, California law requires video or audio recordings of a "critical incident" to be disclosed within 45 days of when the law enforcement agency became aware, or should have become aware, of an incident. Delay can only occur if the disclosure would interfere with an ongoing investigation. Critical incidents are narrowly limited to discharge of a firearm by an officer at a person or use of force against a person resulting in death or great bodily injury.

Activist groups, such as ACLU of California, Black Lives Matter California, Anti Police-Terror Project and many others celebrated the passing of Assembly Bill 748, which took effect July 1. Prior protections in place for police rendered the likelihood of receiving records, video and audio recordings extremely difficult and rare. AB 748 enables activists to pursue justice on a more even playing field on behalf of people in communities they believe are subjected to systematic harassment and violence by police. With the prior set of protections in place for law enforcement, it was less likely that law enforcement would be investigated or charged for misconduct during these contacts with the public. The bill was passed last year alongside related legislation, Senate Bill 1421, which requires law enforcement to provide public access to records related to officer-involved shootings, uses of force resulting in great bodily injury, dishonesty and sexual assault. That bill took effect in January.

The power imbalance between police and the public is greatest when the police are questioned about use of force. Until recently, the word of the police on patrol often held more weight than that of eyewitnesses. But the proliferation of wearable, high-definition video cameras has led to an abundance of evidence in critical incident cases -- evidence police want to control, evidence activists want ready access to. The potential impact of a critical incident video, including sparking protest and riot, is so great that law enforcement has been exempted from releasing video when declaring the images as investigative.

Police agencies and unions naturally seek to protect their members, and activists and those accused in critical incidents are determined to get access to evidence that will prove their case. As AB 748 amends the Public Records Act allowing public access to this closely guarded information, the contours of the new law will be defined in the courts.

SB 1421 and AB 748 will undoubtedly create a flood of requests to law enforcement agencies for information regarding police conduct. Activists will use any information they can obtain to fight officers abusing their position and power. They believe this newly available information will show more unjustified uses of power by law enforcement. And they will demand prosecution of many officers who have committed misconduct in the line of duty. Prosecutors will likely continue to be reluctant in prosecuting police officers, who are viewed as a partner in prosecution.

Crime victims and witnesses were also considered in AB 748. A provision allows redaction or blurring of images where there is an expectation of privacy such as a patient in a hospital who the officer walks past. Minors and crime victims are specifically protected under the law but can request an unredacted version of the video to be provided to them.

Many groups anticipate litigation as the agencies attempt to invoke the clause allowing them to delay disclosure for up to one year if the agency determines the recordings would substantially interfere with the investigation. Court oversight of this determination is not specifically listed in the statute until after one year elapses. With so little oversight on the determination of "interference with an ongoing investigation," a substantial increase in litigation is expected.

AB 748 provides attorneys and defendants with a new avenue to seek release of records pertaining to their case without going through the lengthy and often unsuccessful motion process. They can request the records through the Public Records Act and must be provided an explanation instead of a simple denial without reason or explanation.

Police are aware that any time they activate a body-worn camera, the possibility of footage review exists. Now they are assured that when footage is coupled with carnage the public can demand its release. Unlike the prior law, an active investigation will only buy time, not an exemption from release. Previously, those providing the footage would often only do so with a protective order in place. It was policy of Orange County to only provide footage where a criminal defendant agreed to a protective order so that they could not release the footage to the press.

A credible fear with new public power to obtain recordings is that officers will simply "forget" to activate the cameras. No matter how powerful the technology, it only works when activated. Although the law has requirements to release the footage, there is no punishment if an officer fails to create footage by not activating the body-worn camera. Based on analogous law related to the Public Records Act, agencies are not required to create records that do not already exist. Sander v. Superior Court, 26 Cal. App. 5th 651 (2018). Agencies create their own rules as to when officers are required to activate body-worn cameras. As the footage becomes more readily available to the public, activists fear the agencies will narrow the incidents in which activation is required or will simply direct officers to stop wearing them. With no requirement to create footage, each agency can set their own rules regarding the use of body-worn cameras.

Law enforcement agencies continue to fight the new legislation, arguing that enforcing it would force officers to hesitate in potentially life-threatening situations. Their defiance creates suspicion that they have something to hide from the public. Police unions see the new legislation as a threat to the privacy of their officers and are lobbying not to apply the new amendments. It comes as no surprise that law enforcement agencies and unions are fighting the new legislation, because it makes their jobs more difficult, and opens their agents to potential consequences for their actions. And activists believe that some law enforcement agencies are in defiance of the legislation in order to protect individual officers from prosecution.

Despite law enforcement's reluctance on complying with the new legislation, activists across California agree that the change towards the practices of the rest of the country is a step in the right direction. It is likely that most law enforcement agencies will delay disclosure of information to the public, but the fact that they will have to eventually release the information is still a move in the right direction for those of us who believe that transparency is the first step to accountability and accountability is justice. 